The Easy Way for the Government to Get Around Secrecy Rules Is to Change Them

A court redefines "relevant." The Department of Defense ships secret files on the bin Laden killing into the dark corners of the CIA. The NSA broadly interprets the Freedom of Information Act to keep its surveillance private. When secrecy rules make its job hard, the government figures it might as well change the rules.

Secrecy always exists in conflict with democracy, as we've noted before. Which is why we rely on the courts and laws around access to information to ensure that we're as informed as we can be — and that the executive branch has a check on its power when we can't. But as the secrets of the government's war on terror emerge, we're learning more and more about how the government changes and reinterprets those rules to keep its activity in the shadows.

Three tactics emerged over the weekend.

Rely on judicial redefinitions of common words.

The Wall Street Journal has details on how the Foreign Intelligence Surveillance Court (FISC) — the secret body that approves government requests for surveillance authority — decided that the sweeping collection of information about Americans' phone calls was allowable. It comes down to how one defines "relevant." And it also comes down to technology.

In 1991, the Supreme Court determined that evidence collection is "relevant" to an investigation if there was a "reasonable possibility" that it could produce important information, the Journal notes. That standard has generally been interpreted to exclude massive sweeps of information. Yes, knowing everything about everyone offers more than a reasonable chance of yielding information about crimes, but the cost, most courts have decided, is too great.

The FISC, however, allowed a looser standard. Because the NSA argued that its database of call records in essence couldn't generate relevant information unless it was comprehensive, the court decided that the huge metadata sweep was allowable.

When the Patriot Act came up for reauthorization in 2006, the standard under which data could be collected was the subject of debate. Its original language was more vague even than the "relevant" standard, vague enough to legalize without question the collection of internet metadata that had already begun. The word "relevant" was added, the Journal suggests, to partially appease those members of Congress that questioned the loose existing standard. But with the FISC's sign-off on a broadened definition of the word, that appeasement didn't matter anyway.

This redefinition naturally raises the question: Is the FISC beholden to the Supreme Court? The answer is certainly "yes," but until the Supreme Court evaluates the FISC's decisions — which it appears not to have done — the two exist in parallel. To that end, a D.C.-based privacy group is filing a petition with the Supreme Court to halt the NSA's surveillance system, The Times reports.

Move files out of the reach of the Freedom of Information Act.

The Associated Press reported this morning that Admiral William McRaven, commander of the U.S. Special Operations Command, admitting ordering files related to the raid on Osama bin Laden's compound in Pakistan removed from Department of Defense computers and sent instead to the CIA. McRaven didn't comment on the report, but the CIA insisted that it was the proper course of action.

The CIA, noting that the bin Laden mission was overseen by then-CIA Director Leon Panetta before he became defense secretary, said that the SEALs were effectively assigned to work temporarily for the CIA, which has presidential authority to conduct covert operations.

"Documents related to the raid were handled in a manner consistent with the fact that the operation was conducted under the direction of the CIA director," agency spokesman Preston Golson said in an emailed statement.

In effect, this makes the documents nearly impossible to request under the Freedom of Information Act. The AP notes that it requested files related to the raid under FOIA two years ago from the Department of Defense. But no files existed at Defense by then. And getting files from the CIA is trickier.

McRaven's directive sent the only copies of the military's records about its daring raid to the CIA, which has special authority to prevent the release of "operational files" in ways that can't effectively be challenged in federal court. The Defense Department can prevent the release of its own military files, too, citing risks to national security. But that can be contested in court, and a judge can compel the Pentagon to turn over non-sensitive portions of records.

CIA spokesman Golston insists this was not done to block FOIA requests. It simply has that effect — also ensuring that, for now anyway, the only version of what happened in Abbottabad that night is the one it chooses to share.

Broadly interpret the Freedom of Information Act rules.

Even before Edward Snowden's leaks to the Guardian became public, the Electronic Frontier Foundation was being stymied in attempts to get information from the FISC about a ruling in which it determined the Fourth Amendment had been violated. The group filed a FOIA request with the Department of Justice, which claimed that it was blocked by FISC from releasing any part of the opinion. (Last month, the FISC disagreed.)

That spirit, though, appears to have infected the NSA. On June 11, Michael Morisy from an organization called MuckRock, which assists reporters and the public in seeking information from the government under FOIA, wrote a popular blog post about seeking data from the agency. Such as, for example, any of their personal data that might have been collected — phone and internet metadata, for example.

As reported by Tikkun Daily over the weekend, an IT specialist from central Ohio wrote to the NSA requesting exactly that data. One of the nine exceptions to the Freedom of Information Act allows for classified files or those related to national security to be withheld — in fact, it's the first one. And it's the one that the NSA offered in the standardized letter responding to his request. It reads, in part:

To the extent that your request seeks any metadata/ call detail records on you and/ or any telephone numbers provided in your request, or seeks intelligence information on you, we cannot acknowledge the existence or non-existence of such metadata or call detail records pertaining to the telephone numbers you provided or based on your name. Any positive or negative response on a request-by-request basis would allow our adversaries to accumulate information and draw conclusions about NSA's technical capabilities, sources, and methods. Our adversaries are likely to evaluate all public responses related to these programs. Were we to provide positive or negative responses to requests such as yours, our adversaries' compilation of the information provided would reasonably be expected to cause exceptionally grave damage to the national security.

In other words: Yes, the programs exist, but if we say whether or not we have information on you, IT specialist Clayton Seymour of Ohio, the terrorists will see that we do (or don't), which will cause grave damage to our national security. Moreover, the existence or non-existence of Seymour's data is classified information — even though we know that at least the phone metadata exists.

Got it?

Morisy also got a response to his request, by the way, which sought details about the NSA's new facility in Utah. The NSA told him he wasn't a journalist. Our own request to the NSA, sent on June 10, has not yet yielded a response.